1. This is an appeal from the judgment and decree of the Additional Subordinate Judge of Dacca dated the 30th of August 1911 The facts of the case are stated in the report of the Settlement Officer dated the 6th November 1914, in the order of the Director of Land Records on appeal dated the 7th May 1915 and in the judgment appealed from. In the year 1835, the Government purchased at sale for arrears of land revenue an eight-anna share of a Zamindari known as Bardakhat. Within this estate, there were several taluks created by the former proprietors, each comprising a joar or group of villages. The question which arises relates to one of these taluks or joars. A similar question had previously arisen in regard to other joars. The joar with which we are concerned was granted as a miras taluk by the then proprietor to one Shyam Sunder Dutt on the 21st February 1827, the consideration being a lump payment of Rs. 6,600 siccca and an annual rent of Rs. 1,237-80 sicca fixed in perpetuity. After the purchase of the parent estate by the Government, the Revenue Authorities had to consider how the estate should be dealt with. The subject was discussed at length in a letter dated the 15th February 1836, addressed by Mr. Colvin, Secretary to the Board of Revenue, to the Commissioner of Chittagong. The letter is important, because it explains the policy which the Board at that time intended to pursue in regard to this estate and its dependent taluks. The joar to which the suit relates was the subject of a proceeding drawn up by the Collector on the 11th March 1836, the effect of which is in dispute. It is conceded, however, by the plaintiffs respondents in this appeal that at any rate, the proceeding so recorded put an end to the fixity of the rent and that the rent became for the future variable and subject to enhancement, It appears that after the taluk had been let out in farm for a year or so, an arrangement was made by which it was managed by Shyam Sunder Dutt, the joardar, on account of Government. The arrangement lasted till the year 1841. In 1812 the taluk was settled for a term of five years with the heirs of Shyam Sunder Dutt. A rubokari was drawn up in which the following heading occurs: 'Description of the Government purchase of the aforesaid hisya and enhancement of rent of the aforesaid taluk-' the aforesaid taluk being the taluk in question. Against that heading, the remarks which follow are entered; 'After the purchase by Government of the aforesaid hisya and after the order for enhancement of rent of the aforesaid taluk, the petitioners took settlement of the same at a total rent of Rs. 1,562-2-0 sicca, equivalent to Rs. 1,650, by enhancement of the former rent by one-fourth.' A kabuliyat was executed by the settlement-holders dated the 29th September 1842, in which inter alia they state: 'We, therefore, of our own accord take a patni taluki settlement of the said mahal for a term of twenty years from 1249 B.S. to 12(sic)8 B.S.' We are informed that the term was subsequently reduced to a term of five years by the Commissioner by an order which is not on the record. In 1847 a fresh settlement of the tenure was made with Gopal Kishore Dutt, one of the previous share-holders. The rubokari recorded on this occasion is headed: 'In the matter of a patni talukdar settlement of taluk Shyam Sunder Dutt in joar Lakhipura within bara hisya of Tapa Kurikhal in Perganna Bardakhat which constitutes the auction purchased Zemindari of Government.' The kabuliyat executed by the settlement holder on the 30th July 1847 includes this statement: 'I, therefore, of my own accord take a patni settlement of the said mahal for a term of twenty years from 1254 B.S. to 1273 B.S.' The term was reduced by the Commissioner from twenty years to ten years. During its currency, the tenure was sold on the 15th May 1849 for arrears of rent. The rubokari recording the proceedings is dated the 15th May 1849. The preamble is as follows: 'In the matter of sale under Regulation VIII of 1819 for realization of arrears of rent amounting to Rs. 1,675-10-1 due up to March kist of 1849 in respect of patni taluk Gopal Kishore Dutt' and so forth. The purchasers were the predecessors in interest of the plaintiffs. They apparently held the tenure for the remainder of the term. On its expiry the tenure was settled with them for a period of fifty years from 1st April 1857 to 1st March 1907. On this occasion, a patta and kabuliyat were exchanged, both documents bearing date the 26th April 1858. According to these documents the lessees took settlement of the joar for a term of fifty years from 1254 B.S. to 1313 B.S. under a talukdari right. It was further agreed that the Government would have the power to cancel the settlement on violation of its terms by the lessees and, in case of non-realization of arrears, to realize the same by auction sale of the said talukdari interest in accordance with the provisions of the Regulation. The reference is dearly to the Patni Regulation VIII of 1819, On the expiry of this fifty years' settlement, the estate was settled summarily with the plaintiffs for short terms, the last of which expired on the 31st of March 1915. The Settlement Officer then for the reasons to which we have already referred stated in his report that the tenure should be terminated and the raiyats brought into direct relation with the Government, The plaintiffs appealed to the Director of Land Records, who in a carefully considered order confirmed the proposal of the Settlement Officer. Thereafter the plaintiffs instituted this suit on the 7th July 1916. The plaint prays that their permanent talukdari right in joar Lakhipura and their right of obtaining settlement and possession of the same at a proper rent may be declared. There were also other prayers, including a prayer for mesne profits. The Subordinate Judge in the Court below has decreed the suit in the plaintiffs' favour and, as we have said, this appeal has been preferred on behalf of the Secretary of State.
2. The plaintiffs found their case, in the first instance, on the contention that this taluk was created prior to the Permanent Settlement. On that footing, they say that the taluk was not liable to be annulled in consequence of the sale for arrears of revenue in 1835. The learned Subordinate Judge has found in their favour on this point. But this finding we are unable to accept. Looking at the patta of 1827 granted to Shyam Sunder Dutt, we can see no reason to hold that it is merely a confirmatory patta. It appears to us to be the document or deed of title by which the tenure was created.
3. The main question is as to the effect of the Collector's proceeding of 11th March 1836. We have already said that a similar question has been debated in connection with other taluks of this estate. The case of one taluk was taken to the Privy Council in Khajah Assanoollah v. Obhoy Chunder Roy 13 M.I.A. 317 : 13 W.R.P.C. 24 : 2 Suth. P.C.J. 306 : 2 Sar. P.C.J. 535 : 20 E.R. 570, In another case, Kazee Moonshi Aftabooddin Mohamed v. Samioollah 23 W.R. 245, the final decision was pronounced by the High Court (Sir Richard Couch, C.J., and Birch, J.) Mr. Ram Charan Mitter appearing for the Secretary of State relied on the latter case, while for the plaintiffs reliance was placed by Mr. Jogesh Chander Roy on the decision of the Privy Council.
4. Now when the judgment in Kazee Moonshee's case 23 W.R. 245 is read, it is clear that it proceeds on facts which are on all fours with the facts of the present case. That case related to a similar taluk on the same estate, and it depended on a proceeding of the Collector which is substantially identical with the proceeding on which the present case depends, The learned Judges same to this conclusion: 'The proceedings to which we have referred show that the Government having the undoubted right to avoid the taluk which had been created by the Zemindar did, as far as language can be used to show what was the intention of the Government proceedings in 1836, annul the taluk of the two annas.'
5. That decision would have been binding on us with reference to the construction and the effect of the Collector's proceeding in the present case, had it not been for the previous decision of the Privy Council which we have also to consider.
6. Since the argument began, Mr. Roy has had printed for us the proceeding of the Collector which the Privy Council had before them. A perusal of that proceeding shows that it differs in no material respect from the proceeding which came before the High Court in 1875 and from the proceeding before us in the present case
7. The learned Judges of the High Court, referring to the decision of the Privy Council, distinguished it on this ground: 'In that case,' they said, 'the conduct of the Government was different from what it has been in the present. There were no such proceedings as those in this case which we have referred to, that is to say, a proceedings instituted by the Government before the Collector for the purpose of avoiding the taluk and a decision by that officer ordering that the taluk be annulled.' The learned Judges go on to say: 'The distinction between the case before us and the case before the Judicial Committee is that it appears upon the proceedings which we have now before us that the Government did exercise the power of cancellation,'
8. We have the greatest respect for a decision which has the authority of Couch, C.J., but we are bound to say that an examination of the paper book in the case which went to the Privy Council shows that the distinction suggested is based on a misconception.
9. The similarity of the proceeding which their Lordships had before them with the proceeding in the subsequent case before the High Court and with that in the case now before us will appear from a comparison of the concluding sentences in each case before the Privy Council the proceeding is dated the 19th June 1837 and the concluding portion runs as follows: 'Specially it is well-known that Mirza Hossain Ali, the former proprietor of that share, after the decennial settlement took large sums of money as nazar and selami (bonus) and granted at insufficient rents (worm-eaten) taluk and large quantities of land like this of the said share (worm-eaten) and to some he made grants out of favour, But Section 32 of Regulation XI of 1822 provides that if it appears that the former proprietor has granted lands at insufficient rent or out of favour, the auction-purchaser has the power to set aside the same and fix the rent at the Pergunna rate. Therefore, under Section 5, Regulation XLIV of 1793, and Section 14, Regulation I of 1801 and Regulation V of 1812, and Section 2, Regulation VIII of 1819, and Sections 29, 30 and 31, Regulation XI of 1822, the said taluk having been resumed, it is ordered that the taluk be set aside and the rent be fixed according to the Pergunna rate,' The concluding part of the proceeding in the subsequent case before the High Court is quoted by the learned Judges in their judgment and follows precisely the same lines.
10. The proceeding of 1836 in the present case concludes as follows: 'It is provided in Section 32, Regulation XI of 1822, that if it is found that the former Zamindar out of favour or receiving any amount has granted a patta on a less jama to any one, then the auction purchaser shall have right to nullify the patta and to fix the jama according to the prevailing rate of the Pergunna.' Further on, the proceeding continues: 'Therefore, the said taluk and its fixed jama, granted by the former Zamindar recently after the decennial settlement, are liable to nullification according to the provisions of the said section and Section 5 of Regulation XLIV of 1793, in specification and confirmation of which Section 14, Regulation I of 1801, Section 14, Regulation V of 1814, Section 2. Regulation VIII of 1819, and Sections 29 and 30, Act XI of 1822, were enacted. Therefore, according to Section 32 of Act XX of 1622 and according to the rules under Clause 11 of Sections 2 and 5 of Act IX of 1825, there-assessment of them (taluks) is considered necessary. Therefore, it is ordered that the said taluk be broken up and the fixed jama of it be held null and void and re-assessment be made according to the existing rate of the Pergunna.'
11. The expressions 'set aside' 'annulled' and 'broken up' probably represent the same Word in the originals variously translated. 'Set aside' or 'annulled' conveys the meaning with sufficient accuracy.
12. Dealing with the proceeding before them, their Lordships of the Privy Council made the following observation: 'Great stress has in the argument for the appellant been laid upon this proceeding. Their Lordships, however, feel that in considering its effect they should look to its nature and not to expressions loosely used in it such as 'it be ordered that the taluk be set aside' or the like; and, if this be done it will be found that it is nothing but an ordinary proceeding for the enhancement of rent against a person admitted to be in occupation of the lands.'
13. Their Lordships had already referred to Mr. Colvin's letter of 15th February 1836. They had refrained from deciding the question of law raised in that letter, whether the dependent taluks were within the protection afforded by Section 32 of Regulation XI of 1822. They had said that whatever might be the extreme rights of the Government, Mr. Colvin's letter was the least evidence available of what the Government actually intended to do in respect of the dependent taluks forming part of this estate, and that it was impossible to read the last paragraphs of that letter beginning with the 52nd without coming to the conclusion that it was then the intention of the Government to make settlements with the talukdars of all classes, putting them in the position which they would have held of right before 1822, viz., that of under tenants entitled to retain possession of their lands during the subsistence of their tenure, subject to the condition of having their rents enhanced, according to the Pergunna rates.'
14. Clearly their Lordships interpreted the proceeding of the 19th June before 1837 in the light of Mr. Colvin's letter and came to the conclusion that it was nothing but an ordinary proceeding for enhancement of rent. If that is true of that proceeding, it seems to us that it is equally true of the proceeding with which we have to deal. The question is whether the effect of the proceeding was to destroy or nullify the plaintiffs' tenure. Following the decision of the Privy Council, which we are bound to follow rather than the subsequent decision of this Court which, as we have said, appears to us to be based on a misconception of the materials which the Privy Council had to consider, we must conclude that the effect was not to destroy or annul the taluk but merely to put an end to the fixity of its rent. We may add that a similar result was arrived at in still another case relating to this estate [Trilochun Chuckerbutty v. Komala Kant Chuekerbutty 25 W.R. 536].
15. Having arrived at that conclusion, it is unnecessary for us to consider the further contention of the plaintiffs that the Government are estopped by the fact that they sold the tenure in 1859 under the Patni Regulation from setting up the case that the tenure is not a permanent tenure.
16. We ought, however, to add a word or two in reference to the patta and kabuliyat of 1858 on which the title of the plaintiffs primarily depends. It is true, as the learned Government Pleader has argued, that in there documents there are no words of inheritance. But it has been held on several occasions by the Privy Council that the omission of such words may be supplied by evidence bearing on the history of the tenure and the conduct of the parties. Reference may be made to the case of Baboo Gopal Lal Thakoor v. Teluck Chunder Rai 10 M.I.A. 183 at p. 191 : 3 W.R.P.C. 1, 1 Suth. P.C.J. 558 2 Sar. P.C.J. 98 : 19 E.R. 941, which was followed in the case of Rajah Suttasurrun Ghosal v. Mohesh Chunder Mitter 12 M.I.A. 266 at p. 268 : 11 W.R.P.C. 10 : 2 B.L.R.P.C. 23 : 2 Suth. P.C.J. 180 : 2 Sar. P.C.J. 420 : 20 E.R. 338 : 1 Ind. Dec. (o.s.) 497. The same principle was applied in the more recent case of Noba Kumari Debi v. Behari Lal Sen 34 I.A. 160 : 34 C. 902 : 6 C.L.J. 122 : 11 C.W.N. 865 : 4 A.L.J. 570 : 9 Bom. L.R. 846 : 17 M.L.J. 397 : 2 M.L.J. 433 (P.C.). Moreover, though the documents contain no express words of inheritance, they do refer to the right which the settlement holder acquired under them as a talukdari right. It is well settled that the word taluk prima facie imports permanency. There is also the stipulation that the tenure should be liable to be told for arrears of rent under Regulation VIII of 1819. The reference to that Regulation may not be conclusive. It may be that a tenure which is not a permanent tenure, may nevertheless, by agreement between the lessor and the lessee be sale-able under that Regulation. But, undoubtedly, the language used, coupled with the history of the tenure, suggests and implies that it is a permanent, heritable and transferable tenure. We may refer in this connection to the case of Tarinee Churn Gangooly v. Watson and Co. 12 W.R. 413 : 3 B.L.R.A.C. 437.
17. It was also said on behalf of the Secretary of State that the kabuliyat contains no clause entitling the settlement holder to a fresh settlement at the expiry of the term; on the other hand, it contains no express recognition of the right of Government to re-enter.
18. The patta and the kabuliyat no doubt are the title deeds of the plaintiffs. If there had been anything in these documents inconsistent with the permanency of the tenure, the plaintiffs would doubtless have been bound thereby to deliver the land to the Government on the expiry of the term of fifty years or of the further terms for which the tenure was settled with them. But we can see nothing in the patta and kabuliyat which is inconsistent with the interpretation which we have placed on the Collector's proceeding of 1836. If that proceeding merely had the effect of altering one of the incidents of the old tenure, if it merely substituted a variable rent for a fixed rent, then the terms for which the plaintiffs engaged may properly be regarded not as terms at the close of which the plaintiffs' tenancy came to an end, but as terms on the expiry of which the rent became subject to re assessment. In our opinion there is nothing in the patta and the kabuliyat exchanged between the parties or their predecessors which takes away from or deprives the plaintiff of their right to hold this tenure as a permanent tenure, so long as they pay the rent which the Government may assess upon it.
19. That being so, though we do not assent to all the reasoning of the learned Subordinate Judge, our conclusion is in agreement with the conclusion at which he arrived and the appeal must be dismissed with costs.